Devine Limited v Ipswich City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Devine Limited v Ipswich City Council [2013] QPEC 72

PARTIES:

DEVINE LIMITED
ACN 010 769 365
(Applicant)

v

IPSWICH CITY COUNCIL
(Respondent)

FILE NO:

1107/2012

DIVISION:

Planning & Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17 and 18 October 2012

JUDGE:

Andrews SC, DCJ

ORDER:

Amended Originating Application Dismissed

CATCHWORDS:

Where preliminary approval granted – where no appeal – whether approval in conflict with the planning scheme – whether no evidence of traffic impact – whether no evidence of economic impact – whether no consideration of relevant matters – whether amended application was a minor change – where assessment manager treated substantially different development as minor change – whether to apply s 440 of the Sustainable Planning Act to excuse noncompliances in consequence of treating the amended application as a minor change

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680

Dunghutti Elders Council (Aboriginal Corporation) RNTBC

v Registrar of Aboriginal and Torres Strait Islander

Corporation [2011] FCA 370

Kin Kin Community Group Inc v Sunshine Coast Regional Council [2010] QPEC 144

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Prasad v Minister for Immigration and Ethnic Affairs (1985)

6 FCR 155

Shop, Distributive and Allied Employees Association v National Retail Association (No. 2) [2012] FCA 480

Judicial Review Act1991 (Qld)

Sustainable Planning Act2009 (Qld), s 242, s 329(1)(b), s 350(1)(d)(i), s 440, s 456(1)(a)

Aronson, Dyer and Groves Judicial Review of Administrative Action Fourth Edition, at p 282

COUNSEL:

Fynes Clinton of counsel for the Applicant
Flannagan SC and Brien of counsel for Respondent

SOLICITORS:

McCullough Robertson for the Applicant
Clayton Utz for the Respondent

Nature of the proceeding for declarations and orders
The issues and one commercial explanation for the proceeding
Declarations and Orders Sought by Devine

Facts
First Issue: was the approval in conflict with the planning scheme?
Traffic: Was there no evidence of traffic impact? Did Council fail to consider traffic impact on the local and broader road network?
First Economic Impact Issues: Was there no probative evidence of economic impact? Would no reasonable assessment manager have accepted the evidence?
Second Economic Impact Issue
Issue 5: The application by Council was changed. Was it only a “minor change” as Council contends?

Nature of the proceeding for declarations and orders

1. The applicant, Devine Limited, (Devine) is a land developer and challenges the validity of a decision by Ipswich City Council (Council) to approve another developer’s application. Devine did not make a submission to Council about the other developer’s application and did not appeal the merits of the decision. Devine contends that Council made errors of law when deciding to approve; that the proper consequence would be a fresh public notification of the developer’s application, with the public at liberty to make submissions, and with referral agencies at liberty to make responses and with Council obliged to reconsider the application…